Sherman Cummings v. Attorney General of the State of California

October 5, 2011

SHERMAN CUMMINGS, PETITIONER,v.ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.

ORDER

Petitioner, a former state prisoner proceeding pro se, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 27, 2011, the court dismissed this action due to petitioner's failure to file an amended petition. On the same day, the court entered judgment and closed the case. Pending before the court is petitioner's motion to re-open the case.

The court has construed petitioner's motion as one brought pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure which allows the court to relieve a party from final judgment for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). Here, petitioner states that he did not timely receive the court's order dismissing his petition with leave to file an amended petition because the court sent the order to his old address. Petitioner explains that he experienced difficulty prosecuting this action after he moved residences because he received mixed instructions on where to file his new address. Petitioner also explains that he suffers from mental health issues, and although his case manager from the Consortium of Community Services agreed to help him write a letter to the court explaining his situation, petitioner explains was discharged from the program before he was able to write that letter.

After reviewing petitioner's motion, it appears to the court that petitioner may well have encountered circumstances beyond his control that prevented him from diligently prosecuting this action at the time the court dismissed his case. "[Rule 60(b)] is remedial in nature and thus must be liberally applied." Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1169 (9th Cir. 2002) (en banc). Accordingly, the court will grant petitioner's motion for relief and direct the Clerk of the Court to re-open this case. The court will also grant petitioner an additional thirty days to file an amended petition in accordance with the court's screening order.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's motion to re-open the case (Doc. No. 10) is granted;

2. Petitioner is granted thirty days from the date of service of this order to file an amended petition. Any amended petition must be filed on the form employed by this court and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition";

3. The Clerk of the Court is directed to send petitioner the form for habeas corpus application as well as a courtesy copy of the court's screening order (Doc. No. 6) and

4. Should petitioner fail to file an amended petition in keeping with this order and the court's prior screening order, this action will be dismissed.

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